Director of Public Prosecutions v Rachele

[2019] VCC 1189

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01947

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANDRA RACHELE

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2019
DATE OF SENTENCE:	30 July 2019
CASE MAY BE CITED AS:	DPP v Rachele
MEDIUM NEUTRAL CITATION:	[2019] VCC 1189

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – arson and obtain financial advantage by deception – no prior criminal history – application of Boulton principles – Community Correction Order imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr F. Cameron	Sofra Solicitors

HER HONOUR:

1Sandra Rachele, you have pleaded guilty to one charge of arson and one charge of obtain financial advantage by deception.

2Both charges are serious and that is reflected in the maximum penalties that are prescribed by law, namely, 15 years' imprisonment for arson and 10 years' imprisonment for obtaining a financial advantage by deception.

3The first charge relates to the occasion on 1 March 2018 when you intentionally and without lawful excuse destroyed by fire the building situated at 164 Corio Street Shepparton belonging to Antonio Madefferi. 

4The second charge relates to dishonestly obtaining financial advantage for another, namely the electronic transfer of $10,000 by way of a fraudulent insurance claim to CGU insurance by deception by falsely representing the fire to the property was non suspicious, caused by an electrical fault and that you were notified by a friend of the fire.

5I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing.

6You are a person who comes before the court with no prior criminal history and no subsequent matters pending.

7At the time of the offending you were aged 47 you are now aged 49.  You are married to Sebastiano Rachele. For many years, together with your husband, you managed a fresh fruit and vegetable store known as Fruit Works business at the property the subject of the arson.  The business was owned by your husband’s parents, Joe and Lena.  That business was insured with CGU insurance.

8At the time of the fire your husband was in Melbourne, attending to the Melbourne markets to purchase goods for the business.

9The opening details the chronology of events in some great detail and I do not propose to set it out in full.  Briefly, you attended the store in the early hours of 1 March 2018 and for some inexplicable reason you lit a fire with an unknown item and then left the premises.  That constitutes the arson charge.  The total damage cause by the fire was in excess of $350,000. 

10Over the course of the early hours of the morning after lighting the fire you returned home at which time the alarm monitoring company that was responsible for the property telephoned you to tell you that the alarm had been activated.  You had telephone conversations with your husband where you told him that you would go back to the store to check the alarm.  You drove back to the property and at that time the fire had been burning for about 33 minutes and flames had engulfed the area of the building and flames were protruding from the roof.  You sat in your car for 90 seconds and then drove away and returned home. When your husband called you told him that you had driven around the building again and could see nothing wrong.

11Subsequently, the store alarm was activated again and when contacted by the monitoring company you told them that the alarm could be deactivated.  You spoke to your husband and it was decided that you would not return as the alarm could have been activated by a bird. Therefore you stayed at home.

12Eventually a passer-by saw the fire and reported it to emergency services following which the CFA attended and put the fire out.

13At 5 am your son Joe attended the fire and telephoned you.  You told him that you had attended the store twice during the night due to the alarm being activated.

14Later that morning you were told by the CFA investigator, Rod Railton, that the fire had been started by an electrical fault and was not deliberately lit.  You contacted your insurance broker, Paul Cullen, and told him about the fire and that both police and the Fire Brigade were involved, that you had gone to the property as a false alarm had gone off early in the morning and that you had been told that the cause of the fire was an electrical fault.

15Mr Cullen told you that he would lodge a claim and assessor would be appointed.  The claim was lodged on behalf of the business with CGU insurance and an emergency payment of $10,000 was transferred into the bank account in the name of Fruit Works Shepparton Pty Ltd.  This was for loss of emergency stock in the belief that the fire was non suspicious and caused by an electrical fault.  That constitutes the basis of the obtain financial advantage by deception charge.

16Subsequently the police investigated the matter and obtained CCTV footage that showed you had started the fire.

17On 18 April 2018 you were interviewed by police and during that interview you admitted attending the store twice in response to the alarms.  You identified yourself on the CCTV footage but denied starting the fire.

18When the investigating police officer put it to you that the only conclusion from viewing the CCTV footage was that it was you who was responsible for lighting the fire you replied 'Yeah but why? I do not know why'.

19You told police that you experienced a lot of stress operating the business, that you were on medication for heart palpitations and that you were taking antidepressants.

20Your offending has had a real impact upon Mr Madefferi and in his victim impact statement he says that he is sad all the time and embarrassed about what has occurred.  He finds that he breaks down easily and cries and has no control over this.  He is well known in the community and does not want to go out anywhere. He says that when he cries in front of others and strangers it makes him feel very small.

21He has difficulty sleeping and he wakes up during the night.  His doctor has concerns with his mental health attributable to the extra stress.  He also suffered loss as a consequence of his income stream being ceased because of the destruction of the property by the fire. He estimates his loss of income at between $500,000 to $600,000 in assets plus the lost income from the property. He says it will take at least 12 months or more to restore this income and he is still having to pay the outgoings on the property.

22Your plea of guilty was entered on 20 September 2018 at contest committal prior to any witnesses being cross-examined.  I accept it was entered at an early stage in the proceeding.

23In formulating the appropriate sentence I have had regard to your history and background.  You married when you were 19.  You are the mother of two children.  You have an adult son and  a daughter aged 10.  You have lived in a problematic marriage over the years. You have suffered with both your husband and your son having been verbally and emotionally abusive towards you over many years.  You have lived separate and apart from your husband at the family home for some time.  You are very close to your young daughter.

24You completed Year 12 at a local secondary school. You commenced working casually aged 15 at a local supermarket whilst still at school.  When you left school you continued working for that supermarket and then you continued to work in the family fruit business.  It is said you averaged up to 60 hours per week in your work.  This has continued throughout your working life.  

25Over the years you have maintained your solid work history within the business, the family businesses without any breaks.

26You have been diagnosed as suffering from major depressive disorder by your psychiatrist, Dr Indranil Chakribati, and that has been confirmed by
Dr Lester Walton and also your general practitioner, Dr Satu Simpson.

27Dr Walton, forensic psychiatrist, states that you have been consistent in saying that you have no recollection for remaining at the premises, let alone being involved in the fire setting.  You accept the evidence against you but remain in a state of disbelief that you could have engaged in such behaviour.

28Ultimately he says that you were in the grips of a major depressive disorder at the time of the offending.  Whilst the condition does not seem to have been of psychotic proportions so as to deprive you of the capacity to meaningfully distinguish right from wrong, he did not consider that the formal defence of mental impairment was available.  He does however state that it is well recognised that severe depressive states are associated with compromised capacity to consistently exercise proper social judgement or failure to properly consider the consequences of one’s actions and what is ultimately self-destructive behaviour of a kind he describes of quasi suicide.  Furthermore, he says depressed people may engage in conduct quite out of character to signal the distress of their depression to others.  All of those factors he said potentially were relevant to your offending.

29Importantly, Dr Walton says there is no suggestion that you have any pathological interest in fire setting.  He considers that your psychiatric condition contributed to the offending, which condition in his opinion is reversible.  That is reassuring regarding the risk of similar reoffending and also it augers well for your rehabilitation prospects.

30Dr Chakrabarti concurs with Dr Walton’s report and expressed opinion that you are suffering from a major depressive illness and he agrees with his findings that incarceration may actually worsen your clinical state.  He recommends ongoing treatment.  He agrees that the likelihood of reoffending is low if your mental health condition is well controlled.

31Dr Satu Simpson, your general practitioner, states in her reports also that you have no memory of the episode for which you have been charged.  She has been seeing you since 6 June 2018 in regards to your mental health, particularly episodes of amnesia and potentially sleepwalking.  She was the person who referred you to Dr Chakribati.  She confirms the diagnosis of major depression.  She states that the impact of the incident has been significant for you.  She agrees that any period of custody or sentence would have a negative impact on your mental health.  She confirms that you have responded well to medication.   She noted that you also received some counselling from a psychologist under a mental health care plan.  She confirms ongoing symptoms, low mood, insomnia, tearfulness and social isolation.

32Dr Pandurangi, Forensic Psychiatrist with Forensicare, confirms the diagnosis but in his opinion he is unable to provide a definitive answer as to whether there is any nexus between your condition and the offending.  He says the potential link between the depressive condition that you were suffering from at the time of the offending may offer some explanation to an otherwise out of character behaviour, but without evidence either from your own account or collateral information this in his view remains a presumptive one.

33Ms Donna Dunham, Psychologist, has provided a report concerning her relationship with your younger daughter.  Your daughter has significant symptoms, namely anxiety, worry and stress in the context of your deteriorating health and well-being and also exposure to ongoing conflict at home.

34She reports a strong bond between yourself and your daughter with the prospective separation being emotionally debilitating for both of you.  

35Mark Rumble, the chaplain/counsellor at the Shepparton East primary school, confirms his expressed opinion that abuse is reported at home.  He confirms the strong bond between yourself and your daughter and the fact that she draws strength and security from her relationship with you.  He has been told that she feels very unsafe around her father and brother and that she is extremely concerned for you and that is impacting upon her at school.

36It was accepted by the prosecutor that the circumstances of family hardship have been made out, having regard to the evidence that was put before the court in the plea hearing and I have accepted that submission.

37A bundle of reference material was tendered from Ms Jody Boumis, Fernando Zito, Alexandra Wynan, Cameron Wynan, Suzanne Woodhouse and your parents in law.  The referees collectively expressed the view that you are an extremely hard-working person who has worked diligently in the family business over many years.  You are considered a loving and caring parent who has provided a stable home to your family.  Each of those referees consider that the offending was totally out of character and they all remain supportive of you.

38At the plea hearing reliance was placed on the applicability of the Verdins[1] principles.  It was accepted by Mr Pirrie, the prosecutor, at the initial plea hearing that all limbs of Verdins were enlivened. This morning having regard to Dr Patarangi's report Mr Pickering highlighted his expressed opinion that I have already read out.

[1] Verdins; Buckley; Vo (2007) 16 VR 269

39In view of the weight of the opinion that has been expressed, in particular by Dr Walton and others who have been involved in your clinical care, I prefer their expressed opinions.  I accept that it is likely that you were suffering from a major depressive illness at the time of the offending that was not properly diagnosed and treated.  I consider that this was a factor relevant to the offending and that you engaged in markedly out of character behaviour without any other obvious explanation as a consequence.

40I therefore accept that your moral culpability is reduced and furthermore both general and specific deterrence can be sensibly moderated in this circumstance.  I am satisfied on the basis of the expressed medical opinions that a gaol term would mean that your condition is likely to deteriorate in gaol and that you would experience more difficulties in the gaol setting than a person of otherwise normal health.

41Arson is considered to be a serious offence and that is reflected in the maximum penalty and ordinarily a gaol term would be imposed.  However, having regard to the particular combination of features in your case I have come to the conclusion that all the principles of sentencing can be met through the imposition of a non-custodial sentence.

42I note that your counsel, Mr Cameron, sought a community correction order and the prosecutor has submitted in all the circumstances that a combination of gaol to be followed by a community correction order is the appropriate disposition.

43In formulating the conclusion that a non-custodial disposition is warranted I have taken into account all the matters put in mitigation and in particular your mental health situation, the entry of the pleas of guilty at the early stage in the proceedings, and also the fact that your plea is of great utility and has spared the state the inconvenience and cost of a trial, and importantly avoided witnesses having to be called to give evidence at the trial.  You have facilitated justice so your sentence will be discounted accordingly. I also am satisfied that the plea of guilty does reflect genuine remorse on your behalf.

44I have had regard to your previous good character and consider that this behaviour is out of character and is aberrant and is unlikely to be repeated.  There does not appear to be any motivation for your offending.  I am not satisfied that you did this out of spite or vengeance.  You did not gain financially. I understood that the business was flourishing so there was no background of financial pressure to explain your otherwise inexplicable behaviour.  It is the case that your mental health condition and your personal circumstances do provide context and provide an explanation to this offending behaviour which is otherwise inexplicable.

45Nevertheless I must condemn your behaviour on behalf of the community.  I note that you are now appropriately supported and treated in the community and have very good therapeutic relationships with your general practitioner and treating psychiatrist.  It is important that your mental health condition continue to be monitored and that you continue to be treated within the community so as to optimise your rehabilitation prospects.

46You have been assessed as being suitable for a community correction order.  Supervision, treatment for mental health conditions and community work have all been recommended.

47As was made clear in the guideline sentence of Boulton[2] in an appropriate case a community correction order provides a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously.  The advantage of a community correction order is that it can be fashioned to address the particular circumstances of the offender and the causes of the offending so as to minimise the risk of reoffending by promoting your rehabilitation.  Although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, nevertheless the Court of Appeal did state that a Community Correction Order may remain open even in cases of very serious offending.  In my view the circumstances of this case are such a case.

[2] (2014) 46 VR 308

48The conditions of the proposed order ensure that you continue your mental health treatment and that you be monitored, but as well you will be punished through the imposition of community work hours and supervision.  Overall, I have formed the view that you do have very reasonable prospects for rehabilitation having regard to your compliance with treatment since the incident.

49In formulating the sentence I must impose just punishment.  I will now proceed to impose the formal orders and they are as follows.

50On both charges of arson and obtain financial advantage by deception you will be convicted and placed on a community correction order for three years duration with conditions of supervision, with the requirement that you perform 150 hours unpaid community work and undergo treatment and assessment for mental health conditions.

51I confirm that any of the hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

52An application has been made pursuant to s.464ZF for a forensic sample order.  Is that order consented to?

53MR PICKERING:  Yes, Your Honour.

54HER HONOUR:  In the circumstances I will make the order.  What that means is that you will have to attend a police station and provide a forensic sample which means that you will be given a little cotton bud to put in your mouth to rub on the side of your cheek and provided you do that you comply with the order.  Otherwise police can take steps to take the sample by way of a blood sample and police can use reasonable force for that.

55Finally I make the s.6AAA declaration but for your plea of guilty I would have imposed a term of imprisonment of three years to serve two years.  There has not been any mention of the restitution in the orders.  There is no application for compensation sought, is there?

56MR PICKERING:  No, Your Honour.

57HER HONOUR:  No.  I just note and I will include it in my sentencing remarks that there have been active steps undertaken on behalf of Ms Rachele to repay the $10,000 that was paid out by CGU Insurance but the steps have not been successful and indeed, I understand CGU would not accept $10,000 restitution from Ms Rachele as she had not received a financial benefit under the claim.

58If CGU were to accept the payment it may prejudice any rights that they may otherwise have in the matter and so that is why I have not made any reference to that being a mitigating feature but I have had regard to it.

59MR PICKERING:  Thank you, Your Honour.

60MR CAMERON:  If Your Honour pleases.

61HER HONOUR:  I have signed the order.  I will get Ms Rachele to sign that and then once I leave the Bench my associate will provide a copy to you,
Mr Cameron, for you to give to your client.  The application under s.464ZF, has your instructor got those documents?  Are they e-filed?  I have not seen any to sign.

62I do not have them but I can sign those.  I will sign the s.464ZF in chambers and provide that via my associate to you, Mr Cameron.

63MR CAMERON:  Thank you, Your Honour.

64HER HONOUR:  If you can just reinforce what that means again to your client that would be appreciated?

65MR CAMERON:  I will.

66HER HONOUR:  I understand that covers all aspects of the orders that are required, Mr Pickering?

67MR PICKERING:  Yes, Your Honour.

68HER HONOUR:  We can adjourn, thank you.

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